Court of Appeals of Indiana | Memorandum Decision [Case number] | February 13, 2015 Page 1 of 12

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Mark Small

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

Deputy Attorney General

David E. Corey

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Termination 

of the Parent-Child Relationship 

of B.M.,

T.B.,

Appellant-Respondent,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner

February 13, 2015

Court of Appeals Cause No.

49A04-1407-JT-328

Appeal from the Marion Superior 

Court, The Honorable Marilyn A. 

Moores, Judge, The Honorable 

Larry E. Bradley, Magistrate

Cause No. 49D09-1401-JT-19

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision [Case number] | February 13, 2015 Page 2 of 12

Statement of the Case

[1] T.B. (“Mother”) appeals the termination of her parental rights over her minor 

child, B.M. (“Child”).1 Mother presents one issue for our review, namely, 

whether the Indiana Department of Child Services (“DCS”) presented sufficient 

evidence to support the termination of her parental rights.

[2] We affirm.

Facts and Procedural History

[3] On May 11, 2012, DCS filed a petition alleging Child was a child in need of 

services (“CHINS”). The petition was based on a report from K.O.,2 Child’s 

paternal aunt, that Mother had abandoned Child, that Mother’s whereabouts 

were unknown, and that Mother could not provide for Child’s basic needs. At 

the initial hearing, held that same day and at which Mother did not appear, the 

trial court ordered that Child be placed outside of Mother’s home. Child was 

placed into relative care with K.O. 

[4] On July 2, the trial court adjudicated Child a CHINS after Mother, pursuant to 

an Admission and Agreement on Services (“the Admission”), agreed that Child 

was a CHINS and agreed to participate in services offered by DCS.

 

1

 Father does not participate in this appeal.

2

 K.O. is also referred to as K.S. in the record.
Court of Appeals of Indiana | Memorandum Decision [Case number] | February 13, 2015 Page 3 of 12

[5] Among other things, the Admission provided:

2. [Mother] admits the following:

[Child] . . . is a [CHINS] because [Mother] currently 

lacks a stable home for herself and her child.

* * *

4. . . . [A]ll the parties understand and agree that [Mother’s] 

obligations and services, which are listed herein, are those 

believed by the parties, at this time, to be in the child’s best 

interest. These obligations and/or services may be amended by 

the Court . . . .

* * *

b. . . . [Mother] will participate in all of the services indicated 

within this document in order to demonstrate the ability to meet 

the medical, physical, emotional, mental[,] and/or educational 

needs of the child.

c. . . . [Mother] further understands and agrees that “successful 

completion” of the services includes [Mother] following all 

recommendations made by the counselors, therapists[,] or other 

service provider[s].

(A) . . . [Mother] shall participate in, and successfully complete 

home based casework and therapy, as arranged by the [Family 

Case Manager (“FCM”)], and follow all recommendations.

(B) . . . [Mother] shall complete a parenting assessment, as 

arranged by the FCM, and follow all recommendations.

DCS Exh. 13. Initially, Mother’s treatment plan included the completion of a 

parenting assessment, home-based services, and following recommendations. 

Recommendations included completion of a parenting class and supervised 

visitations.
Court of Appeals of Indiana | Memorandum Decision [Case number] | February 13, 2015 Page 4 of 12

[6] At some point, DCS became concerned that Mother was abusing marijuana3

and struggling with depression.4 As a result, DCS recommended that Mother 

submit to drug screens, and, after she failed a number of them, DCS referred 

Mother to intensive outpatient substance abuse treatment (“IOP”). DCS also 

recommended that Mother complete a psychological evaluation and continue 

to submit to drug screens. And, later, Mother was referred to complete a 

substance-abuse assessment. The combination of her depression and substance 

abuse resulted in a DCS referral for Mother to complete dual diagnosis IOP, 

which would help with both her depression and her substance abuse.

[7] Mother completed parenting classes and submitted to a psychological 

evaluation. Otherwise, however, Mother failed to complete the services offered 

by DCS. From July 2012, when the trial court adjudicated Child a CHINS, to 

April 2014, when DCS stopped Mother’s services for the final time, Mother was 

referred and re-referred to all services, including to a number of different 

providers. All service providers discharged Mother as unsuccessful.

[8] Mother’s providers all cited her failure to attend services as the reason for 

discharge. Indeed, although Mother last tested positive for marijuana in 

 

3

 The record does not disclose what gave rise to the concerns regarding Mother’s substance abuse, but 

Mother testified that she first used marijuana at age 16, and she began using marijuana consistently, three to 

four times a week, approximately six months after Child’s birth. 

4

 DCS became concerned that Mother struggled with depression because she discussed suffering from 

depression, and she had “explosive” episodes during team meetings. Tr. at 96. The psychological 

examination resulted in a depression diagnosis.
Court of Appeals of Indiana | Memorandum Decision [Case number] | February 13, 2015 Page 5 of 12

September 2013, she missed a number of drug screenings. In 2014, for 

example, Mother attended only two of ten scheduled drug screenings. She was 

unsuccessfully discharged for the last time in April 2014.

[9] Mother also failed to complete her dual diagnosis IOP. After she missed three 

scheduled appointments, Mother’s service provider unsuccessfully discharged 

her in April 2014 and refused to treat her again for six months. At the 

termination hearing, Mother testified that she no longer used marijuana and, 

therefore, did not believe it important for her to complete IOP services.

[10] Finally, although DCS conducted home-based services, including supervised 

visitations, at Mother’s home for a time, she was nevertheless unsuccessfully 

discharged for failure to attend. On a number of occasions, when DCS arrived 

to conduct services, Mother was not home and could not be reached. Mother 

last visited Child through DCS in February 2014, and DCS closed the referral.

[11] Mother blamed her absences on a lack of transportation and on conflicts with 

her work schedule. DCS, however, provided Mother with bus passes, and 

several providers testified that they worked with Mother to schedule 

appointments around her work schedule. DCS also changed Mother’s IOP 

provider, in part, because Mother expressed that it would be easier for her to 

attend services with the new provider.

[12] After several review hearings, in January 2014, the court changed Child’s 

permanency plan from reunification to adoption by K.O., who had cared for 
Court of Appeals of Indiana | Memorandum Decision [Case number] | February 13, 2015 Page 6 of 12

Child since his CHINS adjudication for all but three months.5 DCS, however, 

continued services for Mother until April, when her current providers 

discharged her for failure to complete services.

[13] On June 10 and 11, the trial court held the termination hearing, at which the 

Child’s guardian ad litem recommended adoption, and, on June 23, the court 

entered an order terminating Mother’s parental rights over Child. In so doing, 

the trial court noted that Mother “had over two years to successfully complete 

services,” but she had failed to do so. Appellant’s App. at 12. Further, the 

court found that “[Child] has been observed as stable and bonded in his 

placement,” which provided him with permanency. Thus, the court concluded:

24. There is a reasonable probability that the conditions that 

resulted in [Child’s] removal and continued placement outside 

the home will not be remedied by his mother. [Mother] . . . has 

had over two years to successfully complete services in the 

current ChINS. [Mother] has not made the effort needed to 

come close to safely reunify with her son and does not believe 

she needs to address substance abuse and mental health issues. 

[Mother] believes that visitation is important but still failed to 

consistently visit to the point visits were closed.

* * *

33. Continuation of the parent-child relationship poses a threat to 

[Child’s] well-being. [Child] is in need of permanency and has 

been out of the home for two years. [Mother] cannot provide a 

 

5

 In October 2013, allegations arose that K.O. had used marijuana, and K.O. refused to submit to a drug 

screening. Thus, DCS removed Child from K.O.’s care and placed him with Mother’s adoptive mother 

(“Grandmother”). Grandmother, however, did not wish to adopt or keep Child long term, and, in January 

2014, K.O. agreed to submit to drug screenings. K.O. submitted to three screenings, which did not indicate 

the presence of marijuana, and DCS returned Child to K.O.’s care.
Court of Appeals of Indiana | Memorandum Decision [Case number] | February 13, 2015 Page 7 of 12

stable environment and wholly meet his needs. Substance abuse 

and untreated mental health issues would impact safety and 

parenting. . . .

* * *

37. Termination of the parent-child relationship is in the best 

interests of [Child]. Termination would allow for him to be 

adopted into a stable and permanent home where his needs will 

be safely met.

38. There exists a satisfactory plan for the future care and 

treatment of [Child,] that being adoption.

Id. at 12-13. This appeal ensued.

Discussion and Decision

[14] Mother contends that the evidence was insufficient to terminate her parental 

rights over Child. We begin our review of this issue by acknowledging that 

“[t]he traditional right of parents to establish a home and raise their children is 

protected by the Fourteenth Amendment of the United States Constitution.” 

Bailey v. Tippecanoe Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. 

Ct. App. 1996), trans. denied. However, a trial court must subordinate the 

interests of the parents to those of the child when evaluating the circumstances 

surrounding a termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re 

K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child 

relationship is proper where a child’s emotional and physical development is 

threatened. Id. Although the right to raise one’s own child should not be 

terminated solely because there is a better home available for the child, parental 
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rights may be terminated when a parent is unable or unwilling to meet his or 

her parental responsibilities. Id. at 836.

[15] Before an involuntary termination of parental rights can occur in Indiana, in 

relevant part, DCS is required to allege and prove:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least 

six (6) months under a dispositional decree.

* * *

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions 

that resulted in the child's removal or the reasons for 

placement outside the home of the parents will not be 

remedied.

(ii) There is a reasonable probability that the continuation 

of the parent-child relationship poses a threat to the wellbeing of the child.

(iii) The child has, on two (2) separate occasions, been 

adjudicated a child in need of services;[6]

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of 

the child.

Ind. Code § 31-35-2-4(b)(2). That statute provides that DCS need establish only 

one of the requirements of subsection (b)(2)(B) before the trial court may 

 

6

 Here, Child has been adjudicated a CHINS on two separate occasions, but DCS did not allege this 

provision in the CHINS petition. Thus, it is not at issue in this appeal. See Ind. Code § 31-35-2-4(b).
Court of Appeals of Indiana | Memorandum Decision [Case number] | February 13, 2015 Page 9 of 12

terminate parental rights. DCS’s “burden of proof in termination of parental 

rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child 

Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-

14-2).

[16] When reviewing a termination of parental rights, we will not reweigh the 

evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of 

Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. 

denied. Instead, we consider only the evidence and reasonable inferences that 

are most favorable to the judgment. Id. Moreover, in deference to the trial 

court’s unique position to assess the evidence, we will set aside the court’s 

judgment terminating a parent-child relationship only if it is clearly erroneous. 

Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208 

(Ind. Ct. App. 1999), trans. denied.

[17] Here, in terminating Mother’s parental rights, the trial court entered specific 

findings of fact and conclusions thereon. When a trial court’s judgment 

contains special findings and conclusions, we apply a two-tiered standard of 

review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind. 

2005). First, we determine whether the evidence supports the findings and, 

second, we determine whether the findings support the judgment. Id. 

“Findings are clearly erroneous only when the record contains no facts to 

support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 

102 (Ind. 1996). If the evidence and inferences support the trial court’s 

decision, we must affirm. In re L.S., 717 N.E.2d at 208.
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[18] Mother concedes that Child had been removed from her care for a period of at 

least six months, and she does not specifically address any of the trial court’s 

finding or conclusions. Indeed, Mother does not address all of the provisions of 

Indiana Code Section 31-35-2-4(b)(2) on which the trial court relied to 

terminate her parental rights. Mother argues only that the reasons for removal 

and for continued placement outside the home have been remedied, but she 

does not address the trial court’s finding that “the continuation of the parentchild relationship” between Child and Mother “poses a threat to the well-being 

of the child. I.C. § 31-35-2-4(b)(2)(B)(ii); see Appellant’s App. at 13. 

[19] Because Mother does not address the trial court’s conclusion that 

“[c]ontinuation of the parent-child relationship poses a threat to [Child’s] wellbeing,” Appellant’s App. at 13, she has effectively waived appeal of her 

subsection (b)(2)(B) claims. Again, Indiana Code Section 31-35-2-4(b)(2)(B) is 

written in the disjunctive. In re L.S., 717 N.E.2d at 209. DCS needed to 

establish only one of the requirements of subsection (b)(2)(B) before the trial 

court could have terminated parental rights. The trial court here found that 

DCS established the requirement of subsection (b)(2)(B)(ii), and Mother does 

not appeal that finding. Because “Mother does not specifically challenge the 

trial court’s findings or conclusions[, t]o the extent that Mother argues that the 

trial court’s findings or conclusions are clearly erroneous, Mother has waived 

this issue by failing to make a cogent argument.” Runkel v. Miami Co. Dep’t of 

Child Servs. (In re B.R.), 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied.
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[20] Waiver notwithstanding, the trial court’s findings are not clearly erroneous. 

Mother contends that the evidence was insufficient to support the termination 

of her parental rights over Child because “[she] performed some of the services 

[offered by DCS], the reasons for the child’s removal varied from the services 

offered to [her], and [her] work schedule prevented her attendance from some 

of the services.” Appellant’s Br. at 8. These arguments amount to a request for 

us to reweigh the evidence, which we will not do. The evidence most favorable 

to the judgment demonstrates that Mother suffered from depression and 

substance abuse. Despite this, she failed to successfully complete drug 

screenings, substance abuse treatment, and mental health treatment. Moreover, 

she failed to visit with Child consistently. We hold that the trial court’s 

judgment in this respect is supported by the evidence.

[21] Section 31-35-2-4(b)(2) also requires that termination of the parent-child 

relationship be in the best interests of the child, and Mother contends the 

evidence does not support that determination. Here, “the trial court [was] 

required to look beyond the factors identified by DCS and consider the totality 

of the evidence. In so doing, the trial court must [have] subordinated the 

interests of the parent to those of the child.” In re C.A., 15 N.E.3d 85, 94 (Ind. 

Ct. App. 2014). A trial court should consider the recommendations of the case 

manager and court-appointed advocate when it determines whether termination 

is in a child’s best interest. See S.C. v. Ind. Dep’t of Child Servs. (In re J.C.), 994 

N.E.2d 278, 290 (Ind. Ct. App. 2013). “A parent’s historical inability to 

provide a suitable environment, along with the parent’s current inability to do 
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the same, supports finding termination of parental rights is in the best interests 

of the children.” Id. 

[22] Based on Mother’s substance abuse, depression, and failure to complete 

services over a two-year period, Mother’s case manager and Child’s guardian 

ad litem recommended adoption as in Child’s best interests. The trial court 

found that adoption would give Child stability and permanency in a bonded 

environment and that adoption, therefore, was in Child’s best interests. For all 

of the reasons discussed above, its holding is supported by the evidence.

[23] Affirmed.

[24] Mathias, J., and Bradford, J., concur.